Cusp does not mean sure thing, but no one who paid attention to three days of oral argument can say that the arguments are frivolous and not worthy of serious consideration. Even the liberal Justices, while throwing lifelines to the Solicitor General, clearly considered the challenges as serious and substantial.

“This court would not only have to stretch, it would have to abandon and completely overrule a lot of modern precedent, which would do grave damage to this court, in its credibility and power,” said Sen. Richard Blumenthal (D), a former attorney general of Connecticut. “The court commands no armies, it has no money; it depends for its power on its credibility. The only reason people obey it is because it has that credibility. And the court risks grave damage if it strikes down a statute of this magnitude and importance, and stretches so dramatically and drastically to do it.”

Sen. John Kerry (D-MA) said the law has been thoroughly vetted.

“As a senior member of the Finance Committee,” he said, “I can tell you that we had one of the most rigorous and transparent legislative processes that I have witnessed in almost 3 decades here in the Congress. We worked with some of the brightest, most thoughtful and experienced constitutional lawyers in order to make sure that the law was constitutional.”

Comments

Remember when another Democrat lambasted the court for a decision he disagreed with? Charles Lane does:Justice Kennedy, of course, is the author of the court’s opinion in Citizens United, the 2010 decision that struck down restrictions on political expenditures by corporations and unions. Citizens United brought about huge denunciations of the court, mostly from Democrats — and including this memorable public tongue-lashing from President Obama in his 2010 State of the Union Address, in which the president accused the court of “opening the floodgates” to foreign influence over US elections.

You can relive that moment in this video. Please note that, sitting in the front row, silently absorbing the president’s national televised scolding, and the uproar from Democratic senators that followed, is none other than Justice Anthony M. Kennedy.

But I am sure that will have nothing to do with the way he looks at the health care case.

As a bonus, consider that Lane was part of the editorial board that endorsed Obama concluding:But Mr. Obama’s temperament is unlike anything we’ve seen on the national stage in many years. He is deliberate but not indecisive; eloquent but a master of substance and detail; preternaturally confident but eager to hear opposing points of view. He has inspired millions of voters of diverse ages and races, no small thing in our often divided and cynical country. We think he is the right man for a perilous moment.

The undeserved praise for the candidate’s temperament is ironic given that it Obama’s narrow mindedness that led him to berate the justices two years ago. If that poor temperament rubs off on the rest of his party (as it seems to) it might turn off a whole lot more independents as the veneer of reasonableness is stripped away from the Democrats.

As liberal opinion writers go, I used to think Lane was reasonable and mostly fair. But this inference that Justice Kennedy may over-rule the mandate or the entire Act based on anything other than constitutional grounds, insinuating Justice Kennedy is a petty man whose out to settle an old score with the president, is not something I’d expect from Lane. I used to think Lane was better than this.

However, I’m also relatively certain he is the primary author of the March 2 WaPo editorial titled, “The GOP Can No Longer Avoid It’s Rush Limbaugh Problem”. The way I saw it at the time, that editorial served two primary purposes: 1) To closely associate Rush’s problems with the GOP with the hope the Democrats could parlay it into a political advantage; and 2) To try to persuade more advertisers to drop Rush so that Rush might lose his radio gig.

The reason why I think it was Lane who wrote it is because he appeared on Special Report with Brett Baier the day the editorial ran. When the panel discussed what had been happening with Rush, Lane could not disguies his outright contempt for Rush. I’d bet my last cheeseburger that he authored the editorial.

So the next time you see him on Special Report and he strikes you as reasonable and fair, remember this snear job he put out on Justice Kennedy and WaPo’s editorial hit job on Rush.

I believe Lane was rebuking the President for his intemperate attack on the Supreme Court for Citizen’s United. I don’t believe he was demeaning Kennedy at all. I read his column as saying, don’t expect Kennedy to give ObamaCare any benefit of the doubt.
Lane is more sensible that most liberal opinion writers. He defended Santorum when liberals were going after him for taking his dead son home for his children to see the brother they would soon bury. (Lane suffered a similar loss.) He blasted Chas Freeman’s hysterical smear of Israel’s supporters and he’s pointed out that the green economy is an illusion.
I’m not going to say that he’s perfect, but I do think that in many cases he’s entirely reasonable. And I read this column differently from the way you do.

I believe Kagan expressed the misconception best when she questioned the origin of wealth in our world. Apparently, she does not understand that it is a product of human labor directed to recover and develop resources in order to elevate and sustain the human condition.

That said, there are reasonable compromises between individuals of dignity coexisting in a society. The government’s role in a society is to act as an overseer and not a master. It is supposed to address progressive corruption instead of manufacturing it.

When are we going to tax health insurance benefits as income, and move to separate health insurance from employment? That would mean losing a job doesn’t necessarily mean losing insurance.

When are we going to get more medical schools? Or allow people with less than medical degrees more liberty to deliver medical care? For example, more nurse practitioners? Alaska has a program where dental people can do work up to and including filling routine cavities. While doctoring does require some expertise, much could be taken care of by others. We allow men with some training to serve as medics in combat. Medics in WWII could remove an appendix on a submarine. While I would prefer a surgeon to remove mine, one did, a great deal of routine work could be done by lesser mortals.

We need to move away from physicians and their practices billing insurance companies directly. The consumer frequently has no idea of costs, until weeks after an event when they finally get a bill demanding coverage of the deductible. A person gets all sorts of disclosure forms for a loan, why not for medical procedures. Sure, when I needed my appendix out, I didn’t shop for the best deal, but that wasn’t an option. I went to the doctor’s office at 8 am, the appendix wasn’t removed until 7:30 pm. I had time to find a good deal on an appendectomy.

Good points. Moreover, most medical diagnoses seem quite susceptible to computerization. The model would have to be quite complicated and might take years to fully develop, but this is one case where the workings of the human mind might be duplicated, even surpassed, by a computer.

[…] Barnett! It’s His Fault! Posted on March 29, 2012 6:22 pm by Bill Quick » The lifeboats are in the water at the Good Ship Obamacare Mandate – Le·gal In·sur·rec·t… Credit a few lone legal voices, including at Volokh Conspiracy, with keeping the intellectual […]

Just the fact that Kerry said anything tosses out the liberals and what they say. “Vetted” is probably the worst description of the health care reform law that could have been chosen. In fact “vetted” would have included the separation feature with regard to the public mandate.

Not only should the ship of Obamacare sink, the lifeboats face angry seas as well…

Our typical Republican tactical move when we get handed this kind of free gift (you know, like when the other side kicks some seniors and drops a baby and gets caught on a live mic giving aid and comfort to Russia, all in one week) – our usual next move is to have what I’d call a Newt Moment.

And if we all post and comment giddily at thrice our usual rate about how those idjits did enough own goals to make Peewee Hermann look chaste, lots and lots of MSMers who’d rather not be covering BHO and/or his Care this week are very quickly going to turn in perfect formation and grasp this new opportunity and add quite a few well-organized lies and we’re going to be every bit as well-loved by the voters as BHO.

That’s a “Newt Moment.”

But I do have to add:

Sen. John Kerry . . . said the law has been thoroughly vetted. . . . “As a senior member of the Finance Committee,” he said, “I can tell you that we had one of the most rigorous and transparent legislative processes that I have witnessed in almost 3 decades here in the Congress.”

The process was transparent?

The process that produced a bill the contents of which the Dems wouldn’t allow anyone to see until it was passed?

“[A] court should refrain from invalidating more of the statute than is necessary. . . .”

“[W]henever an act of Congress contains unobjectionable provisions separable from those found to be unconstitutional, it is the duty of this court to so declare, and to maintain the act in so far as it is valid.”

“‘Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.'”

Congress could not have intended a constitutionally flawed provision to be severed from the remainder of the statute if the balance of the legislation is incapable of functioning independently. See, e.g., Hill v. Wallace, 259 U. S. 44, 259 U. S. 70-72 (1922) (Future Trading Act held nonseverable because valid and invalid provisions so intertwined that the Court would have to rewrite the law to allow it to stand). This is not a concern, however, when the invalid provision is a legislative veto, which, by its very nature, is separate from the operation of the substantive provisions of a statute. Indeed, when Congress enacted legislative veto provisions, it contemplated that activity under the legislation would take place so long as Congress refrained from exercising that power. [Footnote 6] The independent operation of a statute in the absence of a legislative veto provision thus could be said to indicate little about the intent of Congress regarding severability of the veto.

The more relevant inquiry in evaluating severability is whether the statute will function in a manner consistent with the intent of Congress. In considering this question in the context of a legislative veto, it is necessary to recognize that the absence of the veto necessarily alters the balance of powers between the Legislative and Executive Branches of the Federal Government. ……The final test, for legislative vetos, as well as for other provisions, is the traditional one: the unconstitutional provision must be severed unless the statute created in its absence is legislation that Congress would not have enacted. [Footnote 7]

The inquiry is eased when Congress has explicitly provided for severance by including a severability clause in the statute. This Court has held that the inclusion of such a clause creates a presumption that Congress did not intend the validity of the statute in question to depend on the validity of the constitutionally offensive provision. See INS v. Chadha, 462 U.S. at 462 U. S. 932; Champlin Refining Co. v. Corporation Comm’n of Oklahoma, 286 U.S. at 286 U. S. 235. In such a case, unless there is strong evidence that Congress intended otherwise, the objectionable provision can be excised from the remainder of the statute. In the absence of a severability clause, however, Congress’ silence is just that — silence — and does not raise a presumption against severability. See Tilton v. Richardson, 403 U. S. 672, 403 U. S. 684 (1971) (plurality opinion); United States v. Jackson, 390 U.S. at 390 U. S. 585, n. 27.